Despite recent amendments to the BIF Act to clarify a simple, but necessary step in the Adjudication process, QBCC automated forms generated upon submission of an Adjudication Application to the QBCC Registry continue to create confusion.
On 1 July 2024, s79 of the BIF Act was amended to clarify the obligations on applicants (following submission of an Adjudication Application to the QBCC) to give copies of specified documents to the respondent within 4 business days (July 2024 BIF Act amendments).
The July 2024 BIF Act amendments include:
s79(4): “The claimant must give the following documents to the respondent within 4 business days after making the adjudication application—
(a) a copy of the adjudication application;
(b) a copy of the submissions, if any, accompanying the application under subsection (3).”
s79(6): “In this section—
copy, of an adjudication application, includes a document containing details of the application given to the claimant by the registrar for the purpose of the claimant complying with the claimant’s obligation under subsection (4)(a)"
Earlier this month, the July 2024 BIF Act amendments were considered by the Qld Supreme Court in Platform Constructions Pty Ltd v Fourth Dimension AU Pty Ltd ATF BD Hope Unit Trust & Ors [2024] QSC 235.
The contractor Platform Constructions sought a declaration that the Adjudication Decision in favour of the supplier Fourth Dimension was void for the supplier’s failure to comply with new s79(4)(a). Although the supplier had given the contractor the QBCC automated form (and attachments and submissions), it had not given a complete copy of the Adjudication Application, omitting the subject contract.
The primary issue was whether, in doing so, the supplier had complied with s79(4)(a) BIF Act, and therefore, whether the Adjudication Decision was valid.
The Qld Supreme Court decision of Iris Broadbeach [at 94] in 2023 (prior to the July 2024 BIF Act amendments) held s79 BIF Act required an applicant to give to a respondent a copy of the QBCC automated form (as submitted), together with a full copy of the Adjudication Application, otherwise the Adjudication Application is invalid. At that time, s79(3) BIF Act was simply stated as ‘’a copy of the Adjudication Application must be given to the respondent”. Copy was not then defined.
Surprisingly, this time around the Court stepped away from Iris Broadbeach and read down new s79(6) and held the supplier had complied with s79(4)(a), despite not providing a full copy of the Adjudication Application and upheld the Adjudication Decision as valid.
Based on this decision, putting principles of natural justice aside, respondents are now placed at a distinct practical disadvantage. By relieving Applicants from giving a full copy of the Adjudication Application submitted to the QBCC, respondents are now challenged to put up hypothetical or alternative arguments as to the status of documents unseen within a tight time frame for response.
Watch this space, Troy Legal will keep you advised of developments.
